Source Documents

Prison Population Profile (2011)

Prisoners awaiting trial (on remand) and/or held in preventive detention represent just under 33% of the total prison population. Trials are reported (by prison staff) to be moving more quickly in the subordinate courts since the introduction of the case management system and prisoners now wait ‘months’ for trial, rather than ‘years’ pre-2009. In the High Court, there continue to be some delays (with trials often taking up to two years).

More than half of the remand population (i.e. not held in preventive detention), have committed bailable offences. The reason most often given by prisoners (supported by staff) was that the individual could not afford the amount of the surety set by the court.

As stated previously, preventive detention laws in Malaysia were under review at the time of the audit and the Government had announced its decision to repeal the Internal Security Act 1960, Banishment Act and the Restricted Residence Act. As a result, while approximately 3,000 detainees were held under preventive detention as at December 2011, about half of the detainees have been released since while the others’ status are under review at present.

In interviews with groups of remand prisoners, the audit team found that the majority appeared to have had no access to legal advice or assistance nor had they the means to retain a lawyer.

In Kota Kinabalu prison: the audit team met with 20% of remand prisoners - 30/47 claimed to have no representation (63%).

In Sungai Petani remand prison: the audit team met with 40% of remand prisoners - more than 95% claimed no representation either at trial or entered a plea of guilty.

In Sungai Udang prison: the audit team met with 12% of sentenced prisoners (135/1093). Of the 135, 104 (or 77%) claimed they had not been represented at plea/trial (102 had entered guilty pleas).

Sentenced Prisoners

A glance at the breakdown of sentenced prisoners shows that over 17,000 (or 72% of the sentenced prison population) are serving sentences less than three years, i.e. offences at the lower end of the criminal scale. The most common offences are drugs-related (40%). The ‘traffickers’ (at the most serious end of the scale) are estimated to represent 6% of those sentenced under law.

In interview with groups of sentenced prisoners, the audit team found similarly that the majority had not been represented at trial.

In Kota Kinabalu prison, in a group of 20 sentenced prisoners:

Three were sentenced to more than 20 years – two claimed they had not been represented at any stage;

Ten were sentenced to 15-20 years - eight claimed they had not been represented;

Six were sentenced to 10-14 years: five claimed they had not been represented;

One was sentenced to 8 years and he claimed not to have been represented.

In another group of 70 sentenced prisoners: 18 indicated they had had legal representation (11 private, 7 assigned). The sentences of those unrepresented included: natural life and long term sentences (over 20 years).

In Sungai Udang, three separate groups of sentenced prisoners totaling 135 men were asked to indicate their sentence ranges:

over 10 years: 46 (31 unrepresented);

5-10 years: 39 (29 unrepresented);

1-4 years: 41 (35 unrepresented).

Other Categories of Offender

Prisoners are categorized according to the offence for which they have been sentenced, rather than the risk they present to themselves, staff or other prisoners, or to society. There are over 800 prisoners on death row in the prisons. The manner of their confinement appears to be consistent across the system: they are locked up 23 hours in a single cell and kept isolated from other prisoners. Many have been held in these conditions for years which may be assumed to involve additional punishment. Prison administrations in other countries seek to reduce the mental anguish which result from lengthy appeal procedures by allowing these prisoners access to work, education, and cultural activities. Some do not separate them from other prisoners nor treat them differently.

Foreigners who have overstayed illegally in the country represent another significant category of offender. Many of these have not committed any criminal act beyond their immigration offence and are sentenced to 6 months in prison. In February 2012, there were 2,868 persons in prison for offences against the Immigration Act 1959.

The most common offence charged against or committed by those in prison relate to the Dangerous Drugs Act (DDA). They constitute over half the remand population (4,723) and just fewer than 2,000 of those sentenced received sentences of less than six months. One further observation is that it appears in most cases the possession charges are in respect of amounts that are typically considered to be for personal use. Only 6% are deemed to have been trafficking drugs.

Alternatives to Prison

Alternatives to prison include:

a fine in lieu of prison;

bond to keep the peace (s66,CPC);

conditional or unconditional discharge (s173A, CPC);

release on bond for good behaviour (s294, CPC) – extensively used in the Courts for Children with over 50% of young persons disposed of by way of this order;

compounding provisions (s260, CPC) which appear to have fallen into disuse (though actively applied in other jurisdictions, such as Bangladesh, which has the same provision, inherited from the shared British past).

The sentencers (i.e. judges and magistrates) met with by the audit team – and consistent with skeptical attitudes by sentencers in other countries – appeared reluctant to pass non-custodial sentences as they did not see them being enforced and so constitute a ‘let off’ for the offender. While completion rates (sourced from the prisons below) are high, the numbers admitted to some of the schemes appear low.

Pre-Release Schemes

The prisons operate several pre-release schemes which include:

ParoleThe parole system is administered by the Prisons Department who attach their own staff as parole officers (rather than employing probation officers in this role). A list is prepared and forwarded by the prison administration to a Parole Board to approve. Figures for Kota Kinabalu prison suggest considerable caution in the decisions of the Board: Year Submitted Approved2008 20 92009 51 472010 67 612011 100 65

Nationally 3,574 prisoners were released on parole in the period to 30 January 2012. Prisons figures report that 82 (2.3%) breached the terms of their parole and had their order revoked.

Compulsory Attendance schemes: 53 prisoners on the scheme.

Correctional Centres: Managed by the prisons in association with the army with 940 relocated to these camps.

Mediation (or half-way) Homes: 38 prisoners.

The numbers of prisoners on these schemes appear low. One cause of this appears to be the absence of any risk assessment of individual prisoners.